COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH
DIVISION ADMINISTRATIVE COURT
The Hon Mr Justice Blair
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE SULLIVAN
| PETER CHARLES BOGGIS
EASTON BAVENTS CONSERVATION
|- and -
|WAVENEY DISTRICT COUNCIL
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Gregory Jones and James Neill (instructed by Parkinson Wright) for the Defendant
Christopher Balogh (instructed by Waveney District Council) for the Interested Party
Hearing dates : 6th/7th October 2009
Crown Copyright ©
Lord Justice Sullivan :
"(1) Where [English Nature] are of the opinion that any area of land is of special interest by reason of any of its flora, fauna or geological or physiographical features, it shall be the duty of [English Nature] to notify that fact –
(a) to every local planning authority in whose area the land is situated;
(b) to every owner and occupier of any of that land; and
(c) to the Secretary of State.
(3) A notification under subsection (1) shall specify the time (not being less than three months from the date of giving the notification) within which, and the manner in which, representations or objections with respect to it may be made; and [English Nature] shall consider any representation or objection duly made.
(4) A notification under subsection (1)(b) shall also specify –
(a) The flora, fauna, or geological or physiographical features by reason of which the land is of special interest, and
(b) Any operations appearing to [English Nature] to be likely to damage that flora or fauna or those features,
And shall contain a statement of [English Nature's] views about the management of the land (including any views [English Nature] may have about the conservation and enhancement of that flora or fauna or those features).
(5) Where a notification under subsection (1) has been given, [English Nature] may within the period of nine months beginning with the date on which the notification was served on the Secretary of State either –
(a) give notice to the persons mentioned in subsection (1)
withdrawing the notification; or
(b) give notice to those persons confirming the notification (with or without modifications)."
Since the date of confirmation these statutory provisions have been amended and these functions which were exercised by English Nature, have been transferred to Natural England.
"2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
"Erection, maintenance, and repair of sea defences or coast protection works, including cliff or landslip drainage or stabilisation measures."
All of the objections to the notification of the SSSI were considered in a Report ("the Report") prepared by Officers for the Council of English Nature meeting on 28th June 2006. Having considered the Report the Council confirmed the designation. The Respondents' judicial review proceedings challenging that decision were commenced on 21st September 2006. Against this background, I will consider the two grounds of challenge.
"These geological features include exposures of the three major elements of the Norwich Crag Formation; the Crag itself (Chillesford Church Member), the Baventian Clay (Easton Bavents Member) and the Westleton Beds (Westleton Member)." (Report para. 1.3.1) (emphasis added)
"As the cliff face has eroded geologists have been able to study the new sections in order to gather valuable scientific data, identify how the geological sequence is changing and use this environmental information to correlate the site more widely with other sites in the GCR and those outside of Great Britain. A three-dimensional picture of the landscape and associated depositional environments can then also be developed. Palaeo-environmental information derived from the site contributes to our understanding of how the environment responded to changes in climate."
"to take reasonable steps, consistent with the proper exercise of [their] functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which [the SSSI] is of special scientific interest."
"In this part "nature conservation" means the conservation of flora, fauna or geological or physiographical features."
In my view, the definition of "nature conservation" in section 131(6) of the 1990 Act does not, for the purposes of this appeal, add anything of substance to the duty under section 28G(2) of the 1981 Act to further the conservation and enhancement of the geological features by reason of which this SSSI was designated.
i) that the geological features in question are confined to the sediments and did not include the exposure; and
ii) that "conservation" in this context means preservation of the status quo.
"The key management principle for coastal geological sites is to maintain exposure of the geological interest by allowing natural processes to proceed freely. Inappropriate construction of coastal defences can conceal rock exposures and result in the effective loss of the geological interest. In addition, any development which prevents or slows natural erosion can have a damaging effect. Erosion is necessary to maintain fresh geological outcrops. Reducing the rate of erosion usually results in rock exposures becoming obscured by vegetation and rock debris…...
Conserving the geological exposures and the geomorphological features is not about preventing erosion but allowing their continued evolution."
" the execution of constructions works or of other installations or schemes,
- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources."
and said that it was relevant to defining the concept of plan or project in the Habitats Directive.
"seeks to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment."
When asked what was the "activity" upon which he relied, he replied that it was the making of the OLDs, which was an "activity [by English Nature] that prevents an activity". A process which ensures that activities which are likely to damage the environment are not authorised without prior assessment of their impact on environmental features of special interest is not itself an "activity", much less is it an activity which might be capable of damaging the environment.
"The kind of document which in some Member States is thought of as a plan is one which sets out how it is proposed to carry out or implement a scheme or a policy. This could include, for example, land use plans setting out how land is to be developed, or laying down rules or guidance as to the kind of development which might be appropriate or permissible in particular areas, or giving criteria which should be taken into account in designing new development. Waste management plans, water resources plans, etc, would also count as plans for the purposes of the Directive if they fall within the definition in Article 2(a) and meet the criteria in Article 3. (para 3.5)."
The Office of the Deputy Prime Minister ("ODPM") published "A Practical Guide to the Strategic Environmental Assessment Directive" in September 2005. The Guide is instructive for two reasons. First, it contains in Appendix 1 an "Indicative list of plans and programmes subject to the SEA Directive". A lengthy list of plans of various kinds is set out. The notification of SSSIs is not included in the list. The list is only indicative, not determinative, as to what amounts to a plan for the purposes of the SEA Directive, but the second reason why the Guide is instructive is the fact that the characteristics of the plans in the list are very different from those of the notification of an SSSI. The list does not include any of the designations of other environmental features of special interest referred to in paragraph 22 above. Thus, the designation of an AONB or a National Park is not, of itself, a plan; whereas Areas of Outstanding Natural Beauty Management Plans and National Park Management Plans are, in the ODPM's view, plans for the purposes of the SEA Directive.
"55. As the Commission has rightly pointed out, section 54A of the Town and Country Planning Act 1990, which requires applications for planning permission to be determined in the light of the relevant land use plans, necessarily means that those plans may have considerable influence on development decisions and, as a result, on the sites concerned.
56. It thus follows from the foregoing that, as a result of the failure to make land use plans subject to appropriate assessment of their implications for SACs, Article 6(3) and (4) of the Habitats Directive has not been transposed sufficiently clearly and precisely into United Kingdom law and, therefore, the action brought by the Commission must be held well founded in this regard."
Section 54A of the 1990 Act has been replaced by section 38(6) of the Planning and Compensation Act 2004 which provides that:
"If regard is to be had for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"Statement of [English Nature's] views about the management of the land (including any views [English Nature] may have about the conservation and enhancement of that flora or fauna or those features)."
"Any proposal for the construction of coastal defences should be subject to the Town and Country Planning legislation, in respect of which English Nature is a statutory consultee where development is proposed within an SSSI, and decisions are made by the Local Planning Authority. This provides a process whereby all material considerations, including the special interest of the site and the case for protecting property and homes can be fully considered."
This passage makes it clear beyond any doubt that, far from predetermining the question, the Officers of English Nature were advising the Council of English Nature that whether permission should be granted for the construction of sea defences would have to be determined by the Local Planning Authority through the planning process, wherein the site's special scientific interest would be one, but not the only, material consideration.
"I do not comment on the implications for nature conservation interests of significant physical effects on Easton Broad, as this is not within my area of expertise."
In summary, Professor Vincent concluded that:
"the risk of significant likely physical effects on the barrier beach in front of Easton Broad, part of the SPA and SAC, by 2050 cannot be discounted."
"The absence of justification of [Professor Vincent's] assumptions and their questionable validity casts significant doubt on the reliability of Professor Vincent's conclusions about the extent of beach build up north of the [sacrificial sea defences]."
Dr Lee said that his conclusions were not altered by anything in the Vincent Report. Having considered both the Vincent Report and Dr Lee's response Messrs Reach and Robinson confirmed that the views expressed in their Joint Report remained unchanged.
"a probability or a risk that the [plan or project] will have significant effects on the site concerned." (para. 43)
"44. In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned (see, by analogy, inter alia Case C-180/96 United Kingdom v Commission  ECR I-2265, paragraphs 50, 105 and 107). Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Article 2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora."
(a) The lack of any evidence to contradict the conclusions in the Joint Report.
(b) The real purpose of these proceedings is not to secure the protection of the SPA, but to enable the continued replenishment of the Respondents' sacrificial sea defences.
(c) The construction of the sacrificial sea defences was not lawful, and their continued replenishment would be lawful only if carried out with both planning permission and a consent under section 16 of the Coast Protection Act 1949.
Lord Justice Longmore:
Lord Justice Mummery: